THE EVOLUTION OF INTERNATIONAL

ENVIRONMENTAL LAW
I. From 1900-1972: Early
II. From 1972-1992: Development of Basic Framework
1. 1972: The United Nations Stockholm Conference on the Human
Environment
2. After the Stockholm Conference
III. From 1992-2012: Maturation and Linkage
1. 1992: The United Nations Rio Conference on Environment and
Development
2. After the Rio Conference
I. From 1900-1972
• The environment is ancient and embedded in the major religious
traditions.
• Judeo-Christian tradition, for example, God gave the earth to his
people and their offspring as an everlasting possession to be passed
down to each generation and exhorted people not to cut down fruit-
bearing trees during warfare.' Other religions similarly show respect
for nature.
• Countries have developed rules for the use of shared watercourses
and rights to water.
• Before 1900 few international agreements were concerned
with international environmental issues. The prevailing
rule of international law was that of national sovereignty
over natural resources within a country's territory or
jurisdiction.

• The few international agreements focused primarily on

the boundary waters, navigation, and fishing rights.
• In the early twentieth century, countries concluded at least four agreements to
protect species of commercial value, including migratory birds, birds useful to
agriculture, fur seals, and wild animals, birds, and fish in Africa. Canada-United
States of America: Convention for the Protection of Migratory Birds.
• United States and Canada, August 16, 1916, Charles Bevans, Treaties and
Other International Agreements of the United States of America 1776-
1949, During the 1930s and 1940s, countries concluded several agreements
aimed at protecting fauna and flora in specific regions, namely the Western
Hemisphere and Africa.
• Washington Convention on Nature Protection and Wildlife Preservation in
the Western Hemisphere, October 12, 1940. This Convention aims to secure
the protection of all species of flora and fauna and their habitats. In addition, it
seeks to preserve scenery of great natural beauty, and other sites of geological,
aesthetic, historic, or scientific value.
• Washington International Convention for the Regulation of Whaling,
December 2, 1946; The Convention includes a legally binding Schedule which,
amongst other things, sets out catch limits for commercial and aboriginal
subsistence whaling. The Schedule is an integral part of the Convention, but its
provisions, for example, catch limits, may be amended by the Commission. In
practice, amendments to the Schedule are almost always agreed at the
Commission’s biennial meetings.
• They also negotiated agreements concerned with marine fisheries and
concluded the landmark International Convention for the Regulation of Whaling.
• In the period between 1950 and 1970, States focused on two environmental
problems, marine pollution from oil and damage from civilian use of nuclear
energy, and negotiated several agreements.
• International Convention for the Prevention of Pollution of the Sea by Oil, May
12, 1954, By the late 1960s, environmental concerns had broadened. States
concluded an African Convention on the Conservation of Nature and Natural
Resources in 1968 and the Ramsar Convention on Wetlands in 1971. Still, there
were few international environmental agreements concluded before 1972.
• African Convention on the Conservation of Nature and Natural Resources,
September 15, 1968; African Convention on the Conservation of Nature and
Natural Resources. Objectives: To encourage conservation, utilization, and
development of soil, water, flora, and fauna for the present and future welfare of
mankind, from an economic, nutritional, scientific, educational, cultural, and
aesthetic point of view.
• Ramsar Convention on Wetlands of International Importance Especially as
Waterfowl Habitat, February 2, 1971; The Convention on Wetlands of
International Importance especially as Water- fowl Habitat, sometimes also
known as the Ramsar Convention from its place of adoption in 1971 in Iran, is an
intergovernmental treaty which provides the framework for international
cooperation for the conservation of wetland habitats.
• Trail Smelter Arbitration' between Canada and the United States,(Trail
Smelter Case (United States v. Canada), Ad Hoc International Arbitral
Tribunal, March 11, 1941), The The1941 Trail Smelter dispute began with
the transboundary pollution caused by a smelter in Canada that affected
the U.S. state of Washington. An international tribunal found that Canada
had a duty to prevent damage to the United States that emanated from
within Canadian borders.
• Lac Lanoux Arbitration between France and Spain. (Lake Lanoux Case
(France-v. Spain), Ad Hoc International Arbitral Tribunal, November 16,
1957) the French Government proposed to carry out certain works for the
utilization of the waters of the lake and the Spanish Government feared
that these works would adversely affect Spanish rights and interests,
contrary to the Treaty of Bayonne of May 26, 1866.
• The former dealt with the obligation not to cause transboundary harm, and
the latter with procedural obligations of prior notification, consultation,
and negotiation.
II. From 1972-1992: Development
of Basic Framework
• 1. 1972: The United Nations Stockholm Conference on the
Human Environment; first-time countries across the world
came together to identify and address environmental
problems.
• The United Nations Conference on the Human Environment,
held in Stockholm in 1972, was the first international
intergovernmental conference to focus on environmental
problems.
• The Stockholm Conference was the need to address the
potential conflict between economic development and
environmental protection. Developing countries were
especially concerned that an international effort to protect the
environment would come at the expense of their own
development.
• The central issue that arose in the preparations for the
Stockholm Conference was the need to address the
potential conflict between economic development and
environmental protection. Developing countries were
especially concerned that an international effort to
protect the environment would come at the expense of
their own development.
• Principle of Preventive Action: This principle allows action to be taken to
protect the environment at an early stage. It is now not only a question of
repairing damages after they have occurred but also of preventing those
damages from occurring at all. This principle makes the states dutybound
to guarantee that the activities within their jurisdiction or control do not
cause harm to the environment of other states or of areas beyond the
limits of national jurisdiction
• The Precautionary Principle: It states “Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental
degradation.”
• The 'polluter pays' principle is the commonly accepted practice that those
who produce pollution should bear the costs of managing it to prevent
damage to human health or the environment
• Intergenerational equity: The principle of intergenerational equity states
that every generation holds the Earth in common with members of the
present generation and with other generations, past and future.
III. From 1992-2012: Maturation and
Linkage
• This period begins with the United Nations Conference on
Environment and Development and then analyzes developments
during the almost two decades following the Conference.

• 1992: The United Nations Rio Conference on Environment and

Development
• In June 1992, countries met in Rio de Janeiro, Brazil, to commemorate
the twentieth anniversary of the 1972 Stockholm Conference on the
Human Environment.
• The Rio Conference became an important milestone in the
development of international environmental law and policy.

• The World Commission on Environment and Development

(also called the Brundtland Commission), created by the United
Nations General Assembly, prepared a report for the Rio
Conference, Our Common Future, which made the concept of
sustainable development in the international environmental
policy.
• The Brundtland Commission defined sustainable development as
"development that meets the needs of the present without
compromising the ability of future generations to meet their own
needs." While the concept is nearly universally accepted, there is no
officially agreed definition of sustainable development.

• World Commission on Environment and Development, Our Common

Future (1987)
• One can identify generally accepted characteristics, but still the
concept is a fluid one and provides considerable latitude in its
implementation.
• After the Rio Conference
• These developments can be grouped as follows:
• 1) the linkage of international environmental law with other areas
of law - namely, international economic law, human rights law, and
national security law;

• 2) the rise of actors other than States in shaping international

environmental law, namely the multilateral development banks
through their policies and procedures, the private sector through
voluntary codes of conduct and green standards, public-private
partnerships, and stockholder efforts, and nongovernmental
organizations and civil society generally through diverse means;

• 3) the development and refinement of new international principles

and rules of international environmental law and the increase in
non-legally binding instruments; and
• 4) a new emphasis on implementation of and compliance with
international environmental agreements. In addition, new concerns
with institutional and environmental governance issues have
emerged.
1) Linkages
• (a) Economic Law: Trade and Investment
• (b) Human Rights and Environment
• (c)National Security and Environment

• 2)The Role of Actors Beyond States

• a) Multilateral Development Banks (World Bank initiated
policies and procedures that covered) specific environmental
impacts of Bank-financed projects.
• b) The Private Sector (Private codes of environmental practice
include the International Organization for Standardization
(ISO) environmental management standards.
• c) Nongovernmental Organizations (NGOs) and Civil Society
(the 2002 Johannesburg Summit, 3,200 NGOs were
accredited to participate.
Advances in Principles and Obligations in
International Environmental Law
• Principle 7 of the Rio Declaration provided that "[i]n view of the
different contributions to global environmental degradation, States
have common but differentiated responsibilities." References to
"common but differentiated responsibilities,“ while new then, have
become common in international legal parlance. The concept
underlies the negotiations on climate change.
• Other principles that have been become common in international
legal par- lance in the last two decades include intergenerational
equity, precautionary principle or approach, polluter pays principle,
and, according to some scholars, sustainable development. A
principle of solidarity recently was proposed. (Solidarity: A Structural
Principle of International Law (2010).
• In 1992, States acknowledged in the Rio Declaration on Environment
and Development that little progress had been made since 1972 in
developing international law regarding liability and compensation for
"adverse effects of environmental damage" and urged States to
"cooperate in an expeditious and more determined manner“.
• Soft law instruments (or non-legally binding instruments) related
wholly or in part to environmental concerns have also increased
significantly in number. This reflects a broader trend in certain areas
of international law. The Arctic Council, for example, was established
by a non-legally binding instrument: the Declaration of the
Establishment of the Arctic Council, 1996." There is still no treaty on
the Arctic.
• There are many reasons to use "soft law." In some cases, events
unfold so quickly that it is preferable to agree upon a non-legally
binding instrument than to endure the long process of negotiating a
binding one. In other cases, soft law may be a prelude to a later
binding agreement. Usually it is easier to reach agreement when the
provisions are non-binding and do not have to be consented to by a
parliamentary body.
A Focus on Implementation and Compliance
with Legal Instruments
• Until 1992, states focused primarily on negotiating new legal
instruments. By 1993, as previously mentioned, there were many
multilateral agreements, with separate reporting systems, separate
secretariats, and with the notable exception of the UN Framework
Convention on Climate Change and the Convention on Biodiversity,
usually separate financing mechanisms.
• Another new approach to strengthening the implementation of
multilateral environmental agreements has been the use of market
mechanisms. This is especially apparent in the measures available for
implementing the Kyoto Protocol to the UN Framework Convention
on Climate Change: joint implementation, clean development
mechanism, and emissions trading.